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in China, which has lead to a marked increase in foreign companies using

China as a venue to settle IP infringement cases. According to the reports

published by the Court in 2016, the average amount of damages that the

Beijing IP Court handed for patent infringement cases is approximately two

hundred thousand (200,000) USD.2 The willingness for Chinese courts to

issue large amounts of compensation in timely fashion has made China a

preferred venue for patent infringement claimants. On average, the

specialized IP courts in China take 125 days to render a verdict from the date

of filing, whereas most other jurisdictions take over a year or more depending

on the complexity of cases.3

Specialized IP Courts in China have also employed technical investigators,
who are independent third parties that help to assist judges in finding
technical facts about inventions and patent infringements. This has lead to
greater efficiency, as expert witnesses brought forth by the litigating parties
have become less important due to the role of the technical investigators. In
addition, the specialized IP Courts have increasingly granted provisional
measures such as preliminary injunctions, which further underscores China's
commitment to protecting IP rights. This has lead to an increase in foreign
companies choosing China's IP courts as the appropriate forum to settle their
IP disputes.4 As a neighboring country, the question is whether Vietnam will
follow this model to allow IP disputes to be settled by a special IP court in
future?

Changing landscape of IP law in Vietnam
Recently, the Vietnam Trademark & Patent Office called the National Office
of Intellectual Property (the "NOIP") has expressed interest in strengthening
IP Law to further protect patent owners in Vietnam. Under the current IP
framework in Vietnam, it is far more favourable for claimants to settle outside
of Court due to the large costs associated with litigation. From 2011 to 2015,
only 18 patent infringement cases have been brought in Vietnamese
courthouses and administrative enforcement authorities according to public
data, which is an extremely small number relative to countries that have
stronger IP laws.5

As large tech companies such as Samsung continue to move production hubs to Vietnam, the market risk regarding fake merchandise has increased due to the illegal use of trade secrets and patent infringement. This may lead to an increase in patent infringement – which has already occurred in China, and inevitably has lead to a strong response by Chinese courts that include stricter IP laws and greater protections for patent holders. In order to protect companies moving into Vietnam, Vietnamese intellectual property laws must be strengthened. As the NOIP moves forward in the creation of stronger IP laws, the creation of a specialized IP Court may be a viable option in ensuring that infringement cases are handled in a equitable and timely manner. The creation of a single specialized IP Court would have huge impacts on the Vietnamese IP marketplace by further protecting intellectual property rights and by employing equitable enforcement mechanisms in a timely manner.

Currently, foreign companies are advised to proactively register trademarks, copyrights, and patents swiftly to ensure that their assets are adequately protected during this time of change in Vietnam. This is especially important in the technological sector, but also has far-reaching implications relating to luxury fashion brands, the pharmaceutical sector, and agricultural production. In practice, it is far easier for companies in Vietnam to settle in Court, or to utilize administrative procedures, when their trademarks and patents are readily registered. As such, companies are urged to file patent and trademark applications with the NOIP in a timely manner while Vietnamese policy makers continue to negotiate changes that further protect IP right holders in Vietnam. But the question is whether Vietnam will establish a special IP court to settle the IP dispute (especially the patent dispute) remains unanswered.
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